On July 4, a consideration of Dred Scot

On a 4th of July on which the President has expressed open longing for a lifetime term, and murmurings that a significant share of enlisted men in the military would be willing to overturn the Constitutional order should he call on them to do so, I’m not too interested in empty sloganeering celebrations.

With the obvious exception of African slaves, the Constitution was a very forward looking document for most people when it was adopted. But the Founders could not anticipate every shortcoming, and some of them are so entrenched that it would be nearly impossible to obtain the required supermajority to change them. How many saeculums must such shortcomings be sacrosanct against the will of the majority?

For example, in nearly every country that adopted the Madisonian Presidential system, the result has been a degeneracy into Presidential dictatorships. The only counterexamples are some hybrid systems like France which have both Presidents and Prime Ministers. I never cast a vote for a Presidential (vs. Parliamentary) system. Did you?

Meanwhile, in our own country, in two of the last five Presidential elections, the popular vote loser has been crowned the winner. I never signed up for the Electoral College. Did you? Even so, if 200 years ago, the Congress had placed the Florida panhandle in Alabama, and the upper peninsula of Michigan in Wisconsin, both Al Gore and Hillary Clinton would have won. I never agreed that such accidents of history should be so dispositive. Did you? Have votes on such been held in our lifetimes, or indeed the last three or four lifetimes?

Which brings me to Dred Scot. When I was a kid, I was taught that the Dred Scot decision held that negro slaves had no rights. . But it was actually much, much worse. For, as I learned, the Supreme Court invalidated the Missouri Compromise. I was never taught what that really meant. What the Supreme Court said was that the Congress did not have the power to regulate slavery within the Territories. Thus it could not force a Territory to enter the Union as a free State. Worse, the reasoning openly invited the interpretation that States couldn’t forbid slavery, either. If a slaveowner took his slaves from, say, Alabama to Massachusetts, then Massachusetts was bound to respect his contract rights of ownership in the slave.

Beyond that, there was political meddling in the handling of the case between President-elect Buchanan and several members of the Court. Buchanan wanted the matter settled before he assumed office, so that he could just throw up his hands and declare himself helpless. Taney’s correspondence openly indicated that he wanted the to settle the matter of slavery for all time, in favor of the South.

In the 1800s, lifespans being what they were, the average Supreme Court only served about 10 years on the Court. The new Republican party adopted on its platform that slavery should not be extended to any new States. The method by which such progress would be made was one Justice’s funeral at a time. Needless to say, that wasn’t how it happened.

As a kid, I was taught that the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments meant that Congress took over from the States the protection of civil rights in the country, the States having obviously proven inadequate to the task. Fundamentally, I think that is exactly the correct interpretation.

Each of the three Amendments contains a section that states, “The Congress shall have power to enforce this article by appropriate legislation.” In reaction to Dred Scot, this explicit grant to Congress is a direct rebuke to the Courts. In other words, even if the Courts do not believe that a particular form of protection is necessary, or that it steps on the previously granted rights of the States, the Congress has the power to Act for such protection anyway. This fundamental truth was marginalized and ignored by the Roberts Court in the Shelby County case.

On July 4, 2018, we find ourselves on the precipice of a Court which, with the begrudging acceptance that slavery is not permissible, seems bent upon returning us to the jurisprudence of 1857.

Comments (7)

run75441

July 5, 2018 8:18 am

NDD:

You do understand, the House is to represent by population, yes? the 435 Representatives representing us is in opposition to what Article 1 of what is in the Constitution. The Reapportionment Act of 1929 froze the number of Reps at 435 which now plays out Congressional Districts having an average of 700,000, Montana having over 1 million, and Wyoming having 580,000. Why is Wyoming more equal than Montana and California. Both of the later, lack the number of Congressional Districts and House Representatives. The size of the districts makes it far easier to gerrymander and pack them.

The problem is not the EC which is determined by the number of Representatives + Senators. Fix the real problem and that is the lack of reprentation by state based upon population. The House was purposely established this way to give represntation by a state’s population as opposed to the Senate which gives equal representation to each state and its population regardless of population. To just eliminate the EC leaves the issue of representation by population unresolved. You could do it by cube root or by using the smallest state Wyoming to determine the number of Reps.

The issue of Dictatorship comes when we have a population represented in the legislature by a few who have interests unassociated with the interests of all of their constituents. Put in a different way, too few represent too many. The many’s interests are left unattended in favor of the few who control the wealth. This the Founding Fathers who wrote the Constitution foresaw in both the House and the Senate. In 1920 and using the 1910 census, politics got in the way, and the same battle of rural states versus urban states was played out and froze the House at 435. The House was supposed to grow with the population.

Quick example, if we had Congressional Districts at population of 240,000 or even more, HRC would have won.

If we believe in an elected representative government then SCOTUS needs to be reined in. I believe that decisions on constitutionality should require the approval of at least two branches of the US government. That would seem to require a constitutional amendment.

Lyle

July 5, 2018 11:16 pm

Note that the western UP was given to Mi from Wisconsin to make up for the loss of Toledo and west to In https://en.wikipedia.org/wiki/Timeline_of_the_Toledo_Strip In any case the issues were 19th century ones, since the Fl panhandle was not officially part of the US until after 1819, and the Toledo issue was solved in 1837. BTW Alabama was admitted to the union in 1819 while the treaty ratifiying the US takeover of Florida was only ratified in 1821.

Arne

July 5, 2018 11:17 pm

“The United States Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible.”

ilsm

July 6, 2018 4:34 pm

The decision upheld the concept that a slave was “deeded property” not a “person” (except in terms losss of value by death and/or dismemberment, “wiergeld”) and that those rights existed throughout the jurisdiction of the US constitution.

The issue in Dred Scott IIRC was the power of an owner to recover property that had escaped to a free state. Whether the decision affect concepts of “hold and own” (1820 drew line where slaves could be “held and owned”) is debatable.